A holograph letter discharging a process, found probative of its date.
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In a pursuit upon a clause irritant, the Lord Lindores having set a tack of the teinds of certain lands to Boquhen, with express condition, that if he sell any of these lands, whereof he had set the teinds in tack to him, without consent of the said Lord Lindores, in that case the tack to expire, and the right of the said teinds to return to him again; after which tack Boquhen sells the said lands to Pitcaple, and thereafter the Lord Lindores makes the Lord Lesly, assignee to the contract, bearing the foresaid clause and provision, and sets him a new tack of the said teinds; whereupon he, as assignee, pursues declarator of the said irritant clause against Boquhen and Pitcaple; who compearing and alleging, That the Lord Lindores before the making of the Lord Lesly assignee, by his missive letter all written and subscribed with his own hand, directed to the Laird of Boquhen, consented to the alienation foresaid; and the pursuer answering, That the consent could not be proved by a missive letter, which, was a writ wanting witnesses, to work against the pursuer as assignee, except that the defender could both qualify, that the same was truly done and delivered to the defender, before the pursuer was made assignee; for albeit it be all the Lord Lindore's writing, yet that will not be enough against the assignee, seeing the cedent might write such a letter after his assignation, and therefore the date and delivery thereof ought positive to be proved by and beside the letter itself. The Lords found the allegeance relevant, notwithstanding of the reply, which was not respected, seeing the letter behoved to bear faith in the date, which it proported, except the pursuer would improve the same, or otherwise take it away.
Act. ——.Alt. Baird.Clerk, Hay.
Fol. Dic. v. 2. p. 259. Durie, p. 424.
